The Written Word
for August 4,1999

Carrier v The Queen may be the most damning of all cases against a government – I can think of nothing like it.

The facts were these. Back in the 80s a timber licence of about 5 million cubic meters was hit by a bug infestation. The government, wanting to see some revenue out of these lands, gave the licence to Carrier if Carrier would agree to putting in very expensive infrastructure including sawmills. This Carrier did. In 1993, when less than ½ of the timber had been removed, the government suddenly imposed a new and onerous qualification on the lease dealing with silvaculture. The very best that can be said for the government is that it changed the goalposts mid-game.

But as the court found, this was all a sham. The real agenda was to drive Carrier out of the area because the government had new plans for it – Mike Harcourt, then Premier, Dan Miller, then Forest Minister and Dave Zirnhelt, then Economic Development Minister had promised a couple of Indian bands that they could have the land. This was in the days when Harcourt, operating like an oriental potentate, was handing huge hunks of land to parke and Indians with no care for the economic consequences. You will remember that with Tatshenshini the Harcourt government had to pay substantial damages to the mining company they forced out.

The Trial Judge, Mr Justice Parrett, was scathing in his denunciation of the tactics used by the government and awarded Carrier the amount they would have made, based on 1993-4 prices PLUS punitive damages to be assessed.

Punitive or exemplary damages are rare in Canada though not so rare in the United States. They are not damages actually suffered but are awarded to the plaintiff against the defendant as punishment for bad behaviour. It’s not easy to persuade a judge that punitive damages ought to be assessed but, so egregious was the government misconduct in this case, that he made an exception and awarded them.

Probably the most disgusting and disgraceful of all the government’s conduct has been the politicians trying to shift the blame to the bureaucrats. The decision to stiff Carrier and give the land to the Indians was made by the politicians, not the bureaucrats. Any cover-up – and it was massive – was because bureaucrats were covering the politicians’ asses.

This is a terrible decision politically because it won’t go away. There is the argument on damages which will be in the Fall and the punitive damages will draw a lot of attention, none of it good, to the government. The size of the compensatory damages could be staggering – some say as high as $150 million! Then, this government being as stupid as it is, there will likely be an appeal and it’s one which the government cannot win. For the only real basis of an appeal would be that even though the government deliberately broke a contract, they had it within their legal power to do so. There is no way that the Appeal courts will alter the devastating facts as found by Mr Justice Parrett.

It is truly hard to believe that this government could disgrace itself any more than it has but evidently it’s talent for shameful behaviour knows no limits.